Ideas for final argument in malpractice

Patrick Malone is a friend who is a great trial lawyer in Washington D.C. Is the coauthor of the book Rules of the Road and a member of the Inner Circle of Advocates. Last November he tried a malpractice case and shared his final argument. Here are few excerpts that I particularly liked:

Emphasis on doctor’s caring for patients

"…who took ‘care’ out of standard of care? Doesn’t standard of care mean you care about the patient, that you’re not indifferent to whether the patient gets the recommended treatment or not? That you just maybe take some modest steps to see that the patient really knows about your recommendations? And good doctors, careful doctors, do that…"

Eliminate sympathy as a factor

"What is the bottom line in this case? We do not want your sympathy. This family got plenty of sympathy at the funeral, and thereafter when they sat Shiva, all of that. The reason this family came to court , the reason Richard started this lawsuit, hired me, hired John, the reason Barbara took over the case after he died, is something very simple. They want justice. This shouldn’t have happened. And there’s only one way we can do justice in civil courts. And that’s with assessing the total of the harms that have been caused, and balancing them out with money…"

Recreate the past

"Now, I think a way to think about these damages, especially Richard’s own damages, is to put yourself back. I put myself back on the night before August 3, 2006. And you imagine a conversation with Richard Semaker. Richard, you’re going to see the doctor tomorrow, and he’s going to find something on your back that’s been there for a long time. It should have been taken off before. Now you’re going to find out that it’s too late. And you’re going to find out that these doctors had in their files the knowledge, that they threw stuff away, that they broke medical ethics. Lots of bad stuff happened and that this should not have happened to you, Richard Semaker. But there’s nothing we can do about it, except to make up for it later down the road. ..

Jurors are enforcers of the standards for patient safety

.the court system will cal in a group of people from the community… They will sit as enforcers of the standards for patient safety and as the people who measure the amount that you and your family deserve to have…

Work only a quarter of our life activity

"Now one thing, very simple, is to think of a person’s life as a circle, and how much is earnings portion of your life. Just as a portion of the week, a 40 hour work week, if you do the arithmetic, is roughly a quarter of your life during that week…"